LATENT MALICE

  “She was defenseless,” I reminded them,  “ Elaine was sleeping soundly when her husband killed her…  consider the force with which he swung the bat, striking her head repeatedly; casting blood in an arc across the ceiling and walls behind him… the sound it must have made… Attorney Kelly would have you believe that only a mentally incompetent man could be capable of such atrocity with his children sleeping feet away in their rooms but you know otherwise. You know beyond any doubt that the defendant’s actions were calculated, performed with a full appreciation of their wrongfulness.  The evidence has proven this to you…”

     No one blinked.  They sat on the edges of their seats without moving.  I took this as a good sign.  I’d lost juries that looked away when I made a salient point or their eyes told me: “nice suit buddy but it’s not your day.”   In the past nine years I’d waited on hundreds of verdicts; for hours, some took days, and from them collectively I learned the trick to guessing what a jury will do is very simple: never try.  No matter how good I felt, this one was no different

     The afternoon I met Donahue we were investigating the disappearance of Elaine.  He reported her missing after she failed to return from her night shift as a delivery room nurse at a local hospital.  All her belongings seemed to be in place, credit cards and bank accounts remained inactive, friends and extended family hadn’t heard a word from her.  The couple’s three children were at school while myself, two State Police Detectives and a third from the town of Reading sat in the Donahue’s kitchen listening to Ed drone on about the strength of their marriage.

     Honestly, I wasn’t into it.  Either Elaine took off or Ed here killed her.  At the moment it was a coin toss.  This had the trappings for being an enormous case and I was using every fiber of my being to focus but the truth was I had something I simply couldn’t get off my mind; I thought I might be in love.

     This is embarrassing, but I suppose the fact it’s bothersome speaks volumes about me: I met the girl of my dreams the night of a “Best Chest” contest at the Blue Shamrock.  It was my first time visiting Lowell’s hot, new establishment.   When I arrived attendance was at capacity.  The stereo system blared early 90’s top forty. Conversation was difficult over Goldfinger’s Mable.  I’d gone out that evening with a couple of off duty Lowell cops.  One bought a round of shots and the moment he reached out with mine I saw her through the crowd.  She was one of the four females tending bar.  I’ve been accused of exaggeration but can assert with clear conscience this quartette would’ve rivaled the beauty found behind the bar of any watering hole on the planet.  Paralyzed, the glass slipped through my fingers, bouncing with a thud off the hardwood floor.  Praying she didn’t notice my clumsiness I unclenched my eyelids to see her smile.

     I’d seen that smile before, in Boston, at a nightclub.  From the balcony I watched her and her friends with every intention of approaching to offer a drink or to dance.  Those with her were attention seekers, putting on airs, while she seemed to dance for the sake of it, for herself.  When a high roller invaded their circle, the way she handled his intrusion, with tact and a shoulder, made me smile.  And when another approached to offer them drinks and a table in the VIP section, with a sweeping hand she took charge: “No – thank you, but we’re having too much fun dancing!”

     She seemed to possess a confidence so unique I couldn’t pinpoint its origin; extreme beauty, magnetic personality and an air of independence seemingly impossible to tame.  Watching her I felt more alive than I could recall… and intimidated.   Four feet is as close as I could get before sweat slicked my palms and I felt like I swallowed a golf ball.   Talking to strangers is what I did for a living but this felt like waiting in line for a firing squad.  Finding her working here tonight provided the miracle of a second chance.

     Dropping the shot wasn’t the source of my embarrassed, and neither was unexpectedly seeing her, it was because I came in second in the contest.   Not to make excuses but I was unaware of the event prior to venturing out so I went in cold: no fluid restriction, carbohydrate loading or pumping up.   In case you haven’t picked up on it, back then I didn’t conceal my narcissism.  When you’re successful everyone pretends to love you regardless.   She was the first to cripple my confidence this way but I vowed to get beyond this fear.

     The contest presented an additional dilemma; I might see half the intoxicated revelers in attendance the following morning in court.  When you hold a position of authority people tend to take you less seriously after seeing you half naked.  Placing this concern aside and throwing caution off the stage with my Diesel tee shirt I entered in a desperate attempt to capture her attention.  Whether or not I succeeded remained a mystery until much later. 

     The cops I’d come with knew the owner who allowed us to stay past closing.  By this time my confidence had risen in line with my blood alcohol level.  Introducing myself as she exited the ladies room, I’d already learned her name was Michelle from another waitress.  “Didn’t I see you at the Roxy a few weeks ago,” was my smooth icebreaker. “  She gave me a peculiar look and acknowledged she might have been there.  Then against every rule of non-pursuit I’d relied on to that point in my life I told her how beautiful she was, gave her my card from the DA’s office, and told her:  “I really hope you will call and let me take you out sometime… somewhere nice.”

     An hour and a half later I was home clumsily executing a search warrant on the refrigerator when a call came in.  “Hello?”  “If you really saw me at the Roxy two weeks ago what was I wearing?”  “…  You had on a black dress, short just above the knees - sleeveless with platinum sparkles… black pumps, high enough to accentuate your calves but not outrageous so you could dance.  Your hair was up… and your hoop earrings matched the sparkles on your dress… your watch, bracelet and clutch bag…” The pauses were all bullshit, for effect.  The image had played so many times in my head I recognized it like my refection.

     “R-r-r-ring… r-r-ring…” the sound interrupted Ed’s monolog and tossed a wet blanket on my daydream.  “R-r-r-ring… r-r-ring…”  “Aren’t you gonna get that?”  I asked,  “It might be her.” In another room the answering machine clicked on before Ed could reach it.  His lack of interest caused curious looks between the investigators and myself.  Quietly listening we could hear the caller was one of his relatives with nothing new to report.   Free from Ed’s watchful eye I rose for a look around.   The sink was full of breakfast dishes on top of others crusted with last night’s dinner; open counter space was limited by a cereal boxes, crumpled homework, crayons, artwork and then like a swollen thumb piles of smaller papers sat neatly stacked against the wall.   Hearing Ed’s muffled voice two rooms away inflated my balls enough to start shuffling through what were dozens of scratch, keno and lottery tickets.  Seeing they’d been purchased yesterday, last night and that morning produced an involuntary shiver that left me as fast as it came, taking with it any chance I would meet Mrs. Donahue.

      The prospect of this becoming a murder investigation was tremendous.  There was no honor higher in my office than being assigned a homicide.  But frankly it was something I didn’t deserve and would have never been considered for if anyone in had a glimpse into my private life, and I’m speaking now of the legal aspects.

     Lately I’d placed lunch with Michelle over anything to do with work.  On this day it wasn’t quite noon when I walked into the Shamrock.  The lunch crowd had yet to emerge from the surrounding office and municipal buildings.  At first the place looked empty, then I saw a little kid.  She had pulled out all the chairs and was playing underneath a table.  Michelle must be in the kitchen and the child’s parent is in the bathroom was as far as I’d thought when a rubber ball landed at my feet causing me to react, snatching it out of the air.  Slightly less than half the size of a baseball, one of the mysteries of my childhood remains how I could have lost a ball just likes it down Nana’s cellar.  Looking up into her breathless anticipation, it took some nerve to through it to a strange guy in a suit; my return throw unleashed joyous laughter and took sound coordination for her not to miss.  “Wanna play?” she asked without moving from her hiding spot.  “Well I thought I already was.”

     I was terrible at placing kids ages but if I had to guess I’d say she was about two; gorgeous, with blond pigtails and blue eyes that sparkled.

     Down on one knee I felt I could better gauge both velocity and trajectory, yet after a dozen or so tosses one took an awkward bounce off an uneven board sending her giggling back toward the kitchen.  I took this opportunity to stand and stretch and that’s when the train struck me.   Pushing through the swigging doors, it swept the kid off her feet and continued on in my direction. “ But Momma we’re playing!” 

      Recognizing the angles before they were revealed was my area of expertise.   Anticipating the unexpected, in or outside the courtroom, is how I made a living.  If I misses something important it could cost me a case, or in some situations much more.  This one got right passed.  The kid was so beautiful how did I miss it? 

     In those seconds I wondered how long Michelle had watched us from the kitchen and at the same time understood the source of her confidence and strength.  When She introduced Kyera as her daughter Michelle brimmed with pride but I could sense hyper-extended nerves.  The meaning of the introduction knocked the wind from me.  Blood and embarrassment filled my cheeks.  Have you lost your mind!  This is a little too big an issue to keep from me don’t you think?  You were that confident in our relationship… at this point, to spring it on me here today, likes this?   How did you know I wouldn’t take off out those doors? -  She didn’t, that was the point.   Accomplishing this feat required extraordinary effort, a number of accomplices and what I recognized above all else, decisive purpose.  Michelle had pulled it off masterfully.

     “Hi Kyera, I’m Jimmy.”  She looked back with a coy expression as though she knew exactly who I was.   Michelle put Kyera down and rose to meet me with a kiss.  I pulled her close and felt a racing heart slow beneath melting anxiety.   She released to check my expression and it must have provided assurance she’d done the right thing all these weeks.  Her lips curled to a smile and for the first time I saw dampness swell in her eyes.  I glanced down at Kyera who was staring straight up at us.  The shimmer in her eyes and the breadth of her smile had doubled.  In that instant my mind expanded and it all came together.  Going forward the three of us would be together and I couldn’t comprehend of anything changing this.

     By now Elaine had been missing for weeks without a sign.   I continued to plod along with investigators trying to turn up leads while Ed led marches, candlelight vigils and held news conferences pleading for his wife to come home.  Then one morning I dropped by the house with a Town Detective to pick up some life insurance information from Ed and saw something that changed everything.   He was seeing his three young children off to school when we pulled up.   They had stopped in the front walkway to hold hands in a circle and pray.  We watched for a moment then exited the car as Ed finished the prayer:  “and please God, keep Mommy safe and send her home to us unharmed very soon.”  To manage my sanity I tried to never let anything I saw or experienced on the job get to me, but the maliciousness underlying this scene clung to me.

     Without one solid piece of anything to implicate Donahue we refused to confirm to the media he wasn’t a suspect.  This angered him because it cast a shadow over all his efforts to appear as the grieving, abandoned spouse.  Finally the suggestion was made that if we were allowed to conduct a thorough search of his home using forensics and State Police Search Dogs we would go on record with our findings, and if there was nothing incriminating, he would be officially ruled out.  “But you searched the house the first day you were there,” was Ed’s initial objection.  “That wasn’t a search, we just walked through,” he was told.  “Nothing was touched, there was no one present from Crime Scene Services and certainly no dogs.”  “Well the kids are allergic to dogs,” came objection number two.  But Ed’s burning desire to be able to carry on in front of the cameras, out from under the cloud of suspicion, led him to reconsider and on a Tuesday he told us we could search the premises that Friday after the kids had left for school.

     From that moment Ed and his home were placed under surveillance, a task that turned out to be difficult to accomplish without being detected during the day.   Under the cover of darkness however, members of the State Police were able to take up positions in the woods behind the Donahue home without being noticed.  And the night before our scheduled search Ed did not disappoint.  Through the rear windows he was observed busily moving from one room to another, then carrying objects between the first and second floors and the basement.   Just passed midnight the door up to the backyard from the cellar opened and out he came with a large mattress.  Across the yard, over the three-foot stonewall and into the woods Ed labored; half carrying, half dragging until startled by the sharp glare of  State Police Maglites.  “Halt!  Lets see your hands!”  In complete shocked Ed dropped the bedding right where he stood.  Moving closer to examine troopers could clearly see it was heavily stained in a dark red substance later confirmed to be coagulated blood.

     After being paged with the news I raced through the night to the Donahue residence thinking the same thing as every investigator; things would coast down hill from here: draft a search warrant, get it signed by a judge, find Elaine, lock up Mr. Donahue.  As it turned out we could not have been more mistaken.

     By the following afternoon Ed was still walking around a free man.  He and his children had gone to stay with relatives while every branch of the Local and State Police had gone to work on his house.  Once the cops have their hands on a warrant forget about the place being searched ever looking the same.  When I arrived floors were being ripped up and walls torn down.  Front, rear and side doors remained propped open to accommodate the endless parade of crime scene personnel.  The dogs had searched the interior and were now working outside.  By late afternoon news helicopters flew overhead broadcasting pictures of the scene that answered the question on everyone’s mind; if investigators were digging up the back yard, no one had found Elaine Donahue.

   Those close to the investigation had more insight.   At one point the crime scene analysts called me upstairs.  We’d been given a tour of the second floor the first afternoon we visited Ed and noticed nothing unusual.    Using a chemical procedure, members of the forensics unit now revealed latent blood splatters all over the ceiling and wall of the master bedroom.   Nevertheless, blood splatters and a missing wife didn’t make a strong case for murder.  The question was did it make one at all?  “Looks like we may have a ‘Webster’ situation on our hands.”   These were the first words I recall the District Attorney personally directing towards me besides cursory pleasantries while passing in a hallway.   “I suggest you get to some research so we can evaluate our options and varying strength of grand jury indictments.”  It was he and I and his deputy first assistant standing in the street outside the Donahue house and I remember asking myself what in the world he just said.  “ Sure, yes, of course sir, I’ll get right on it and report back to you with my findings.”

    Commonwealth v. John Webster, was an 1850 Massachusetts murder case in which investigators never found the body, just some body parts.  So far all we had was blood, and the prospect of finding more was beginning to look bleak.   I was driving to the law library and gotten all the way to the parking garage when my cell phone rang:  “Come on back – you won’t believe this,” the detective on the other end was so out of breath I could barely understand him.  “Tucked in a small pocket of Ed’s brief case we found three receipts for consecutive purchases made earlier this week: a department store for a padlock, a home goods store for a fifty gallon rubber container and one for a rental unit at E-Z Mini Storage yards from the office where he’s been working.”

     It took a few hours to draft an addendum to the search warrant, assemble everyone and get up to the storage facility.  When they severed the lock with bolt cutters and rolled up the garage door it was dark.  Not just outside where we looked into the unit using flashlights, but being in the presence of an act that was purely evil darkens your spirit.  The rancid stench; the sight of another person who I’d seen in pictures as beautiful and vibrant wrapped and stuffed as though melting into a rubber box.... the children.  True horror, you swear it won’t but just  being exposed to it changes something already hidden in you.
    Arresting Ed was the next priority.  Angered, terrified, but mostly confused by what I’d seen of all the things that’d changed in me maturity wasn’t one of them.  Making sure I was front and center when the State Troopers knocked on his brother’s front door, Ed appeared and they asked him to step out side.  Quietly he complied and was met by Miranda and handcuffs.  Conversely, I couldn’t resist: “That was the last step you will ever take as a free man,” I told him summonsing my most formidable tone.  But for the first time since I’d met him Ed remained silent, appearing unmoved by my words.  Frozen on the steps I looked on as they stuffed him in the rear of the cruiser and drove away.   Above everything else I remember standing there not feeling the least bit better.